In every business relationship there is the potential for conflict over contractual agreements or business operations. When such conflicts arise, there is no need to incur the onerous expense and delays involved in traditional litigation. There are readily available alternative dispute resolution procedures that will enable you to resolve your disputes relatively quickly, fairly and cost-effectively.

Resolving international disputes demands special skills, experience and cultural sensitivity. That’s why thousands of attorneys and their clients turn to JAMS. We are a recognized leader in cross-border mediations and arbitrations, with resources wherever you or your clients do business.

Colleges and universities need to manage, resolve and prevent conflict. As a worldwide leader in dispute resolution, JAMS is singularly qualified to provide a comprehensive range of unique and effective solutions for problems facing students, faculty and administration.

The JAMS ADR blog serves to engage our clients, the legal community and the public in a discussion about alternative dispute resolution. As leaders in mediation, arbitration and more, we strive to remain at the forefront of legal developments, trends and news in areas of law that pertain to ADR.

International commercial arbitration is one of the fastest-growing practices at JAMS. With industry leading rules, JAMS is praised for a highly experienced panel with specialties in many key areas, multilingual case management capabilities, and unparalleled service. JAMS specializes in the resolution of international disputes and is one of the largest providers of commercial arbitration in the world.

JAMS ADR Blog

From Bench to Mediator—Some Observations about the Transition

As the 2014 Mediation Week kicks off, I wanted to share my perspective about transitioning from a judge to a neutral. So far this experience has been incredibly rewarding and very interesting. I thought my clients would enjoy my observations and help them to understand my process.

First of all, a reality that I had studied, and soon encountered, is the intense emotions that cloud the negotiations and sometimes mask the true nature of the dispute. As a judge I had almost no exposure to the anxieties of the parties since trials are formal proceedings. Interactions were almost exclusively with the attorneys. Mediators experience all the tensions and soul searching inherent in the process of finding compromise. The initial joint session is often the first time that parties are able to verbalize the frustration, anger and hurt feelings that have been bottled up for years. Emotions cannot be ignored or downplayed. Unless the parties can vent and come to grips with these strong feelings against the other side and the nightmare that they have been living through, the mediation will be at risk.

The physical role played by a judge and mediator is also vastly different. During an ongoing trial, although I would take notes, make legal rulings, and certainly oversee everything, it was the attorneys that ran the show. They decided on their tactics, selected the jury, made openings and closings, and determined which witnesses to call and the content of their direct and cross examinations. Now, using “shuttle diplomacy” between the opposing parties, a mediator remains active to foster constructive dialogue, present options and proposals, work to overcome impasses and find common ground to facilitate settlement.

Another transition I faced as a new mediator was my affirmative obligation not to reveal confidential information I learned from one side. As a judge I tried to keep both sides in the information loop in order to insure a fair trial. In a mediation, each party decides what information it wants to disclose. It is common for a mediator to learn facts from an attorney or during a private caucus that could dramatically affect the bargaining dynamics of the parties. But if a party asks the mediator not to divulge this information to the opposing side, the mediator is ethically bound to follow that request. Confidentiality is not only necessary but essential since the entire process would break down if parties did not trust the mediator.

Another significant difference I experienced in mediating cases was being comfortable with ex-parte communications outside the presence of the other attorney. When I was a judge, I would not speak privately about a case with one of the attorneys because of my obligation to be fair to both sides. In mediations, however, private conversations are expected. They occur in memoranda, on the telephone, in the corridors, and in individual caucuses. These private communications are necessary. They are the surest way for the mediator to learn each side’s unvarnished view of the case and potential settlement avenues.

As a trial judge I watched hundreds of juries return verdicts that brought elation to one side, but sadness and devastation to the other. Mediation allows parties to voluntarily determine the outcome of their case. There is an ebb and a flow to it that is amazing to watch. The wonderful thing is that mediation really does work and the vast majority of cases do settle. It is such a rewarding experience to see a sense of relief come over the parties when they know that the nightmare is finally over and they can get back on with their lives.

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The JAMS ADR blog serves to engage our clients, the legal community and the public in a discussion about alternative dispute resolution. As leaders in mediation, arbitration and more, we strive to remain at the forefront of legal developments, trends and news in areas of law that pertain to ADR.

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This website is not a solicitation for business. All content on the JAMS website is intended to provide general information about JAMS and an opportunity for interested persons to contact JAMS. The content of this website is not offered as legal advice or legal opinion and it should not be relied upon for any specific situation. JAMS neutrals are not engaged in the practice of law and no attorney client relationship is intended. This website is for informational purposes only and does not constitute a complete description of JAMS services. While JAMS endeavors to keep the information updated and correct, JAMS makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, or reliability of the information contained in this website. See More